Citation NR: 9709537
Decision Date: 03/21/97 Archive Date: 03/31/97
DOCKET NO. 95-01 776 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to restoration of a 20 percent evaluation
assigned for hypertension, presently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. A. Howell
INTRODUCTION
The veteran served on active duty from April 1979 to November
1991. He also has unverified service from August 1967 to
August 1969 and from November 1969 to April 1979.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which reduced the veteran’s service connected
hypertension disability from 20 percent to 10 percent
disabling by rating decision dated in October 1993. The 20
percent evaluation had been in effect since 1992.
The appellant requested, but failed to report for a personal
hearing in Washington, D. C. As such, the case is now before
the Board based on the evidence of record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he is entitled to a
restoration of a 20 percent evaluation for hypertension.
Specifically, he maintains that his hypertension has not
improved from June 1992, when a 20 percent evaluation was
first granted, to the time when it was reduced.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence demonstrates that the reduction in the rating was
warranted.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the veteran’s claim.
2. The clinical evidence of record does not show that the
veteran's diastolic blood pressure is predominantly 110 or
greater with definite physical symptoms caused by
hypertension.
3. There is some evidence of control of the blood pressure
with continuous medication.
CONCLUSION OF LAW
The criteria for restoration of a 20 percent evaluation for
hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 3.105(e), Part 4, 4.1, 4.2, 4.3,
4.7. 4.10, 4.104, Diagnostic Code (DC) 7101 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); that is, he has presented a claim that is plausible.
Further, he has not alleged nor does the evidence show that
any records of probative value, which could be associated
with the claims folder and that have not already been sought,
are available. The Board accordingly finds that the duty to
assist the veteran, as mandated by § 5107(a), has been
satisfied.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (1996). Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1996). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluations will be assigned if the disability more
closely approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (1996). When, after careful consideration of all
procurable and assembled data, a reasonable doubt arises
regarding the degree of disability, such doubt will be
resolved in favor of the veteran. 38 C.F.R. § 4.3 (1996).
Hypertensive vascular disease (essential arterial
hypertension) manifested by diastolic pressure readings that
are predominantly 100 or greater warrants a 10 percent
disability rating. Hypertensive vascular disease manifested
by diastolic pressure readings that are predominantly 110 or
more with definite symptoms of the disease warrants a 20
percent disability rating. If the symptoms are moderately
severe and diastolic pressure readings predominately 120 or
more, a 40 percent evaluation is in order. With diastolic
pressure readings predominately 130 or more and severe
symptoms, a 60 percent evaluation is warranted. 38 C.F.R. §
4.104, DC 7101 (1996). Finally, when continuous medication
is shown necessary for control of hypertension with a history
of diastolic blood pressure predominately 100 or more, a
minimum rating of 10 percent will be assigned. 38 C.F.R.
§ 4.104, DC 7101 (1996).
VA regulations provide that where reduction in evaluation of
a service-connected disability is considered warranted and
the lower evaluation would result in a reduction or
discontinuance of compensation payments currently being made,
a rating proposing the reduction or discontinuance is to be
prepared setting forth all material facts and reasons. 38
C.F.R. § 3.105(e) (1996). The Board notes that this was done
in the instant case. The RO issued a rating decision in June
1993 proposing the reduction in the veteran’s 20 percent
disability evaluation for hypertension. He was notified of
the proposed action.
Furthermore, the regulations provide that the veteran is to
be notified of the contemplated action (reduction or
discontinuance) and given detailed reasons therefore, and is
to be given 60 days for the presentation of additional
evidence to show that compensation payments should be
continued at their present level. The veteran is also to be
informed that he/she may request a predetermination hearing,
provided that the request is received by the VA within 30
days from the date of the notice. If additional evidence is
not received within the 60 day period and no hearing is
requested, final rating action will be taken and the award
will be reduced or discontinued effective the last day of the
month in which a 60-day period from the date of notice to the
veteran expires. 38 C.F.R. § 3.105(e), (h) (1996).
In the instant case, the Board finds that the RO provided the
veteran with appropriate notice of the proposed reduction of
his hypertension evaluation in a July 1993 letter. Moreover,
he subsequently submitted additional information and
indicated that he did not think that the proposed reduction
was warranted. His statement and the additional evidence
were considered by the RO. He did not request a
predetermination hearing. The proposed reduction was
effectuated in an October 1993 rating decision, effective
February 1, 1994. Therefore, the Board determines that the
RO's reduction of the evaluation of the veteran’s
hypertension disability was procedurally in accordance with
the provisions of 38 C.F.R. § 3.105.
Rating agencies will handle cases affected by change of
medical findings or diagnosis, so as to produce the greatest
degree of stability of disability evaluations consistent with
the laws and VA regulations governing disability compensation
and pension. It is essential that the entire record of
examinations and the recent examination is full and complete,
including all special examinations indicated as a result of
general examination and the entire case history.
Examinations less full and complete than those on which
payments were authorized or continued will not be used as a
basis of reduction. Ratings on account of diseases subject
to temporary or episodic improvement, e.g., manic depressive
or other psychotic reaction, epilepsy, bronchial asthma,
gastric or duodenal ulcer, many skin diseases, etc., will not
be reduced on any one examination, except in those instances
where all the evidence of record clearly warrants the
conclusion that sustained improvement has been demonstrated.
Moreover, though material improvement in the physical or
mental condition is clearly reflected, the rating agency will
consider whether the evidence makes it reasonably certain
that the improvement will be maintained under the ordinary
conditions of life. 38 C.F.R. § 3.344(a); see also Kitchens
v. Brown, 7 Vet.App. 320 (1995); Brown v. Brown, 5 Vet.App.
413 (1993).
The provisions above apply to ratings which have continued
for long periods at the same level (5 years or more). They
do not apply to disabilities which have not become stabilized
and are likely to improve. Re-examinations disclosing
improvement, physical or mental, in these disabilities will
warrant reduction in rating. 38 C.F.R. § 3.344(c) (1996).
Service connection was established for hypertension by a
rating decision dated in June 1992, and a 20 percent
evaluation was assigned thereto, effective from December 1,
1991. In January 1993, the veteran filed a claim for, among
other things, an increased rating for hypertension with
claimed headaches. Relevant outpatient treatment records
associated with the file at that time revealed that his blood
pressure was 120/84 and 130/80 in July 1992 and he was being
treated with “Lisopril”. In connection with a neurological
work-up for headaches, he was examined in May 1993 by Russell
C. Packard, M.D. At that time, his blood pressure was
reported as 160/90. Dr. Packard noted that the veteran was
being treated for his high blood pressure with “Lisopril”.
After evaluation it was concluded that the appellant had
probable muscle contraction headaches that were unrelated to
his hypertension.
In May 1993, the veteran underwent a VA examination for
hypertension. The medical history indicates that he stated
that he was diagnosed with hypertension in 1982 and denied
any subjective complaints. The examiner reported a blood
pressure of 150/92, right arm, sitting position. Blood
pressure readings taken by the nurse were as follows:
sitting 168/90, lying 142/88, and standing 158/88. It was
noted that his medication was recently changed from
“Lisinopril” to Procardia. Physical examination revealed
that his heart was not enlarged and the apex beat was at the
midclavicular line. An electrocardiogram (EKG) showed normal
sinus rhythm with sinus arrhythmia and left ventricular
hypertrophy. The final diagnosis was hypertension.
By rating decision dated in June 1993, the RO proposed to
reduce the veteran’s evaluation for hypertension from 20
percent to 10 percent on the basis that he had no symptoms of
hypertension. It was noted that the blood pressure was under
some control with the use of medication. The RO noted that
for an evaluation of 20 percent, there must be diastolic
pressure readings predominantly 110 or more, and there must
be definite symptoms of hypertension. He was notified by
letter dated in July 1993, and given an opportunity to submit
additional evidence. In August 1993, he submitted additional
outpatient treatment records. Those records revealed that he
had recently undergone serial blood pressure checks. On July
27, 1993, his blood pressure was 166/94, 178/110, and
176/110; on August 2, 1993, it was 158/92 and 172/96; on
August 3, 1993, it was 166/98 and 166/92; on August 4, 1993,
it was 152/86, 165/100, and 156/100. At a follow-up
appointment on August 5, 1993, his blood pressure was 166/100
and 162/108. Additional outpatient treatment records
associated with the file reveal blood pressures of 150/96 in
March 1993; 192/118 and 168/101 in March 1993; and 142/72 in
May 1993.
After reviewing and considering the additional evidence, the
RO reduced the veteran’s evaluation for hypertension from 20
percent to 10 percent by rating decision dated in October
1993. He was notified by letter dated in November 1993 and
an appeal was taken. An treatment letter dated in April 1994
from a doctor in the Naval Reserve was submitted by the
veteran and considered by the RO. This record reveals that
he was medically evaluated for symptomatic uncontrolled
hypertension as evidenced by severe persistent headache in
January 1994. His blood pressure at that time was 188/120
and 178/120. It was noted that he did not fulfill the
classic criteria for a hypertensive emergency nor urgency,
but that it was a serious condition requiring blood pressure
and cardiac monitoring. Treatment with Procardia reduced his
blood pressure to 151/92 and 150/80. He later underwent 24
hour blood pressure monitoring which revealed a daytime
maximum systolic blood pressure of 179 and a diastolic of
119. His medication was adjusted, and in March 1994, his
blood pressure was 160/102 and in April 1994 it was 178/92.
The doctor noted that his thyroid function tests were normal,
and he had persistent trace proteinuria and a mildly elevated
creatinine. His EKG reportedly showed voltage criteria for
left ventricular hypertrophy. The diagnosis was uncontrolled
hypertension with evidence of end organ impairment on dual
antihypertensives.
Applying the provisions of 38 C.F.R. § 4.104, DC 7101 to the
clinical evidence summarized above, the Board concludes that
the criteria for a 20 percent rating under DC 7101 are not
met. While there are some isolated diastolic readings above
110 of record, and even two at 120 during a hypertensive
event, the diastolic readings are not predominantly greater
than 110, and the reports from the most recent examination of
record showed diastolic reading to be under 110 while on
medication. The continued use of medication warrants a 10
percent rating under the applicable code.
It is the conclusion of the Board therefore, that the
evidence on file does not support the continued application
of the 20 percent rating. The current objective findings
more nearly approximate those for the 10 percent rating, and
accordingly the lower rating is for application. 38 C.F.R.
§ 4.7. While, as noted, there are some ratings over 110,
these do not predominate during the time period in question,
especially with the use of continuous medication. The
preponderance of the evidence supports the reduction and
there is no reasonable doubt raised as to a material fact.
ORDER
Entitlement to restoration of a 20 percent evaluation for
hypertension is denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -